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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1159 September Term, 2000 ___________________________________ HOWARD HOPKINS v. STANLEY SILBER, M.D. ___________________________________ Davis, Krauser, Wenner, William W.,
(Retired, specially assigned)

JJ. ___________________________________ Opinion by Krauser, J. ___________________________________ Filed: November 28, 2001

Appellant, Howard Hopkins, filed a complaint in the Circuit Court for Baltimore City, alleging that he had been the subject of two negligently performed penile implant surgeries: the first was

performed by appellee, Stanley R. Silber, M.D., and the second by Horst K. Schirmer, M.D. A jury found both doctors negligent and

awarded appellant $15,000 in past medical expenses and $20,000 in non-economic damages. Although the jury rejected appellees' defense of contributory negligence, it nonetheless found that appellant, by his postsurgery conduct, had negligently contributed to the injuries he sustained. This finding, appellant claims, unfairly depressed the

amount of non-economic damages the jury awarded because, according to appellant, the issue of contributory negligence should not have been submitted to the jury in the first place. For that reason,

among others, appellant now seeks a new trial solely on the question of non-economic damages. Because of a post-trial

settlement of his claim against Dr. Schirmer, this appeal only involves appellant's claim against Dr. Silber. In turn, Dr.

Silber has filed a cross-appeal against appellant, claiming that the circuit court should have set aside the verdict because the jury found contributory negligence, if only as to damages.

The specific issues presented by appellant1 are: I. Whether the circuit court erred in permitting the issue of contributory negligence to go to the jury. Whether the circuit court erred in instructing the jury that appellant had a duty to reduce his injuries.

II.

III. Whether the circuit court erred in instructing the jury on intervening superseding causes. IV. Whether the circuit court erred in failing to grant appellant's motion for a mistrial after appellee made a "golden rule" argument to the jury.

In his cross-appeal, appellee raises, as noted earlier, only one issue: Whether the circuit court erred in failing to set aside the verdict and award of damages in favor of appellant because the jury found contributory negligence. For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTS Appellant developed prostate cancer, requiring the surgical removal of his prostate gland and radiation treatment. As a result of the radiation treatment, appellant became impotent and consulted appellee, Stanley R. Silber, M.D. Appellee recommended at first a

We have rephrased, but not substantively altered, the issues presented by both parties to facilitate our analysis.

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prescription injections.

drug,

then

a

vacuum

pump,

and

finally,

penile

When these measures failed to cure the problem,

appellee suggested penile implants, and appellant agreed. On January in 2, 1996, appellee penis. surgically After implanted Dr. two

prostheses

appellant's

surgery,

Silber

instructed appellant to refrain from sex for "five or six weeks," and to keep his penis in an upright position and in an erect state until it healed from the surgery. He further instructed appellant

to return periodically to appellee's office for an examination to determine whether he could resume sex. As instructed, appellant

returned to appellee's office on January 11, January 19, and February 2 of 1996. But, in disregard of appellee's instructions,

appellant "tr[ied] to have sex" six different times before the recommended waiting period had expired. Four weeks after surgery, appellant's post-operative pain "had subsided somewhat," leaving him with a "small amount of pain." his February 2 appointment with appellee, however, At

appellant They had

informed appellee that he could not deflate his implants. failed to function, according to appellant, as appellee

promised they would. Unhappy with his penile implants, appellant canceled his sixth week appointment with appellee, scheduled for February 16. He

thereupon made an appointment to see Horst Schirmer, M.D., later to be named appellee's co-defendant. On February 23, 1996, appellant

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met with Dr. Schirmer.

At that consultation, appellant informed

Dr. Schirmer that two prostheses had been implanted in his penis and that he was unable to deflate them. He also complained that

"the prosthesis on the right side was pressing on the skin just behind the penis glans, the bulb on the end of the penis." according to appellant, "quite painful." Dr. Schirmer examined appellant and found ischemia2 on the right side of appellant's penis. Dr. Schirmer informed appellant It was,

that the prosthesis on the right side of his penis was too long and that it was causing the ischemia by "putting too much pressure on the penis and starving the tissue in that area from getting blood." There was a danger, Dr. Schirmer explained, that the implant would extrude through the tissue "out to the skin." He therefore

recommended that the implant be removed. Until that could be done, Dr. Schirmer suggested relieving "some of the pressure off of the right device by sticking a needle in the cylinder on the right side and pulling fluid out." Appellant agreed.

When appellant returned to his office, Dr. Schirmer performed that procedure but to no avail; appellant's penis remained erect and, according to appellant, "painful and swollen." Dr. Schirmer

then advised appellant that the implants should be removed and replaced with what he described as "malleable rods." The implants

"Ischemia" is a "deficiency of blood in part, usually due to functional constriction or actual obstruction of a blood vessel." Dorland's Illustrated Medical Dictionary (28th ed. 1994).
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were removed, and the rods implanted in May, 1996. After surgery, however, the implant on the right side of appellant's penis broke through the right corporal body3 inside his penis, requiring removal of the implant. The removal was performed by Harold J. Alfert, M.D., at Johns Hopkins Hospital in November of 1996. After removing was the a device, Dr. Alfert but, showed it to to

appellant.

It

not

malleable

rod,

according

appellant, a "rubbery device," known as a "sizer," and, on the side of that device, were imprinted the words "not for implant."4 Dr.

Alfert did not remove the malleable rod that Schirmer had implanted on the left side of appellant's penis. Following the removal of the sizer, Dr. Alfert referred appellant to Arthur Burnett, M.D. Dr. Burnett met with appellant

and discussed with him the risks of undergoing another penile prosthesis surgery. "device infection, The risks, according to Dr. Barnett, included erosion, malfunction, [and the] need for

replacement."

Dr. Burnett also informed appellant that "repeated

penial prosthesis surgeries can be more problematic in terms of risks." "The concern," he explained, "is that some of the penial

The corporal body, or "cavernosum penis" is "one of two parallel columns of erectile tissue forming the dorsal part of the body of the penis; they are separated posteriorly, forming the crura of the penis. SYN caversous body of penis." See Stedman's Medical Dictionary (26th ed. 1995).
4 A "sizer" is a little ruler used to measure each corporal body. These measurements are then used to determine the correct length of the implant to be inserted. A sizer is not manufactured for implantation and is usually imprinted with the words "not for implant, only for measurement."

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tissues with scarring and perhaps poor circulation [may not] hold the device . . . ." And he stated that "the risk of device failure

for repeated surgeries are higher." A pre-surgical consultation with Dr. Barnett was scheduled as appellant appeared "inclined to proceed ahead with penial

prosthesis surgery."

At that consultation, Dr. Burnett informed

appellant that his "best recommendation for a successful surgery [was] to replace the [malleable rod] in the more healthy side of the penis . . . with an inflatable device." The likelihood of

success, Dr. Burnett opined, was "actually very good." Dr. Burnett scheduled appellant for surgery and for a pre-operative evaluation. After undergoing the pre-operative evaluation, however, appellant canceled the surgery and never returned to Dr. Burnett. At trial, appellant's girlfriend, Judith Tarleton, testified that appellant's pain from the operation performed by appellee subsided within three or four weeks of the surgery. She further

testified that, following that three or four week period, she and appellant attempted to have sexual intercourse six times. attempts were both painful and unsuccessful. Those

Consequently,

appellant went to Dr. Schirmer for treatment. Tarleton stated that she and appellant have not been able to engage in sexual

intercourse since November of 1996, notwithstanding the remaining left implant. Appellant's first expert witness was Dr. James Smolev, a

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urologist. Based on his review of appellant's medical records, Dr. Smolev testified that "[i]t appeared that [appellee] put in a prosthesis on . . . the right side of [appellant's] penis that was too large for the tissue to accept." Unable to deflate the device, appellant was in "constant pain." The implantation was, Dr. Smolev testified, a deviation from "accepted standards of medical care." Later, according to Smolev, Dr. Schirmer correctly found that the implanted prosthesis was too long and had cut off the blood supply of the surrounding tissues, causing ischemia. described the dangers of this condition: Well tissues that don't have good blood supply cannot resist infection either. So if you combine a piece of plastic with an area of necrotic or dead tissue, that will automatically get infected, it will spread the infection at least in the penis and eventually that tissue will not be able to resist or hold in the plastic and the plastic will come piercing out of the end of the penis. Consequently, the implants should have been removed by Dr. Schirmer "as soon as possible . . . ." "[C]ertainly no more than Dr. Smolev

two days" after Dr. Schirmer had determined that appellant's right implant was too long," he opined. Nonetheless, Dr. Schirmer waited two months before removing the right implant. This two-month wait, according to Dr. Smolev, "made [appellant's situation] worse." Dr. Smolev further testified that had Dr. Schirmer promptly removed appellant's right prothesis, there would have been "a very

reasonable chance within medical probability that [appellant's]

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penis could have been salvaged." Dr. Smolev also stated that the penile implant appellee inserted was not the type that could be deflated by drawing its fluid. He therefore opined that Dr. Schirmer's removal of fluid

from appellant's implant "was not in accordance with the standard of care." He added that Dr. Schirmer also violated the standard of care when he implanted the sizer. As to whether appellant was a candidate for re-implantation, Dr. Smolev asserted that, based on the condition of appellant's penis, he "would have to give [appellant] a very high chance of failure" and that it might "mak[e] his condition much worse . . . ." He explained that "the fact that there has been an erosion of

the right cylinder . . .[,] there's [no] spongy tissue or erectile tissue left." Dr. Smolev added that "there are a few surgeons who

are experts . . . who possibly could do it, but certainly it's heroic surgery." permanent. Appellant's next expert witness was Dr. Burnett. In addition Appellant's condition, Dr. Smolev concluded, was

to the testimony that we have previously discussed, Dr. Burnett testified that, although he told appellant that there was a very good chance that the surgery he proposed would be successful, he did not think it was unreasonable for appellant not to go through with that surgery. Appellee's defense consisted of his testimony and the

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testimony

of

Michael

Nasland,

M.D.

Appellee

testified

that

appellant's January 19 and February 2 examinations revealed "very little discoloration." While acknowledging that appellant "was

certainly having discomfort," he observed that that "was not extremely abnormal." appear to be Moreover, he claimed that there did not wrong with the size or placement of

anything

appellant's implants. opined.

"They seemed to be in good position," he

Appellee also testified that his post-surgical examinations of appellant did not disclose any signs of ischemia. In fact, he

stated that he was surprised that, several weeks later, Dr. Schirmer found ischemia. He further testified that he had told

appellant "it would be approximately six weeks before he could resume intercourse." He gave that instruction because time was

needed "for both the incision to heal, [and] for the prosthesis to seat adequately in the corporal [body]. . . ." At the close of his testimony, appellee stated that, "to the best of his knowledge," he had performed the surgery on appellant correctly; had placed the correct size prosthesis in appellant; and had never "observed anything that led [him] in anyway to think that perhaps the wrong size prosthesis had been used on [appellant]." Appellee's expert witness, Dr. Michael Nasland, a urologist with the University of Maryland Hospital and director of the Maryland Prostate Center, testified that he had reviewed the

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medical records of Doctors Schirmer, Alfert, and Burnett, among others. He stated that a patient's premature attempts at sexual

intercourse, shortly after penile implant surgery, could break the surgical incisions. activity early, He added that "if you start to have sexual hasn't healed completely, there's the

that

potential for more damage to the corporal bodies to occur then would normally occur from the operation." Dr. Nasland further

testified that the malleable rod remaining in the left corporal body of appellant's penis was adequate for sexual intercourse. According to the briefs of the parties, Jonathan Jarow, M.D. also testified. Because the testimony of Jarow was not included in the extract, we shall not consider what he might or might not have said at trial, regardless of the representations of the parties. See Tretick v. Layman, 95 Md. App. 62, 79 n.4 (1993) (holding that appellant failed to preserve issue for review because he failed to include in the extract pertinent portions of the trial transcript). At the conclusion of the trial, the jury returned a verdict of $15,000 for past medical expenses and $20,000 for non-economic damages. Dissatisfied with the non-economic damages award,

appellant noted this appeal. by both parties.

We now turn to the issues presented

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I Both parties claim that the circuit court erred in the manner in which it handled the issue of contributory negligence though, of course, for different reasons. Appellant contends that the issue

should not have been submitted to the jury; appellee claims that it should have but not with the instructions given by the circuit court. Because these claims are intertwined, we shall consider

them together. We turn first to appellant's claim, questioning the propriety of submitting this issue to the jury.

A Appellant contends that the circuit court erred in permitting the issue of contributory negligence to go to the jury because appellee purportedly failed to present any evidence that

appellant's "injuries were caused by his actions."

In addition,

appellant claims that appellee's failure "to assert or claim contributory negligence in [his] answer to interrogatory bars the issue of contributory negligence." As to the latter argument, we note that neither the extract nor the record contains a copy of either appellant's

interrogatories or appellee's answers. address this argument.

We therefore decline to

See Salem Constr. Corp. v. Tompkins, 259

Md. 345, 346 (1970) ("The Court will not pass upon matter[s] not printed in the extract . . . ."). -11We note in passing, however,

that

the

record

contains

appellee's

answer

to

appellant's

complaint, which asserts contributory negligence as an affirmative defense. We conclude that there was sufficient evidence to send this issue to the jury. Maryland law requires "the submission of even See

meager evidence [of contributory evidence] to the jury,"

Chudson v. Ratra, 76 Md. App. 753, 769-70 (1988), and the evidence adduced in the instant case was substantially more than meager. Both parties testified that appellee instructed appellant to refrain from sexual intercourse for "six weeks." In fact,

appellant testified that it was his understanding that "the plan" called for him to return periodically to appellee's office for the purpose of determining whether he could resume having sexual intercourse. Appellant therefore knew that his premature attempts Nonetheless,

to engage in sexual intercourse involved some risk.

he attempted to have sexual intercourse no less than six times within the six week period during which he was to refrain from such activities. He did so in disregard of his doctor's orders.

Moreover, appellee testified that the six week waiting period was to allow "time for both the incision to heal, [and] for the prosthesis to seat adequately in the corporal [body]. . . ." And

Dr. Nasland opined that a patient's premature attempts at sexual intercourse, shortly after penile implant surgery, could break the surgical incisions. He added that "if you start to have sexual

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activity

early,

that

hasn't

healed

completely,

there's

the

potential for more damages to the corporal bodies to occur then would normally occur from the operation." Indeed, appellant's own

expert witness, Dr. Smolev, warned that the device should not be used for at least six weeks and compared a premature use of the device to "running a 100 yard dash a week after you have [had] a hip replacement." Furthermore, there is evidence that up to the time he

attempted to have intercourse, everything appeared to be going well. Indeed, appellant testified that, at his four week

examination by appellee, his post-operative pain "had subsided somewhat," leaving him with a "small amount of pain." Appellee

concurred with that assessment and added that, at the four week examination, nothing appeared wrong with the size or placement of appellant's implants. opined. "They seemed to be in good position," he

Moreover, he did not notice any signs of ischemia.

Appellant's only problem, at that time, was that he could not fully deflate the implants. Judith Tarelton, appellant's girlfriend, also testified that appellant's post-surgical pain had subsided within three or four weeks of the surgery. She further stated that, after that three or four week period, she and appellant attempted to have sexual intercourse six times, and that, after those six attempts,

appellant went to Dr. Schirmer with complaints of severe pain.

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Notwithstanding this testimony, appellant argues that, without expert testimony "to prove contributory negligence and that such negligence was a proximate cause of the claimed injuries," the issue should not have been permitted to go to the jury. As

detailed above, there was considerable lay and expert testimony that, other than the difficulty in deflating the implants,

appellant appeared to be having no unusual problems following the surgery performed by appellee. That absence of problems continued

until, against doctor's orders, he repeatedly attempted to have sexual intercourse within weeks of his surgery. Moreover, experts

for both sides testified as to the inadvisability of premature sexual activity and the consequences that would flow from making premature demands on the implanted devices.

B Appellee contends that the circuit court's "contributory negligence instruction was erroneous" for two reasons. First,

appellee argues that, because the Court of Appeals reversed Santoni in Moodie v. Santoni, 292 Md. 582 (1982), the Santoni-based

instruction given by the circuit court was not a correct statement of the law. contributory Second, appellee maintains that the circuit court's negligence instruction was tantamount to an

instruction on comparative negligence, a doctrine rejected by our appellate courts and legislature. See, e.g., Franklin v. Morrison,

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350 Md. 144, 167 (1998); Harrison v. Montgomery County Board of Education, persuasive. The instruction at issue stated: The rule of contributory negligence requires that the patient's negligence must be concurrent with that of the physician. If it occurs after the physician's negligence and merely adds to the effects, as opposed to being the cause of the patient's problem, it will not relieve the physician from liability. It may serve to mitigate or lessen the amount of damages that you award, however. And there is a question on the verdict sheet that asks you, "Is contributory negligence in this case an affirmative defense?" This is what it's referring to. An affirmative defense is a bar. Think of it as the example of self-defense in an assault case. That prevents Howard Hopkins from holding the physician liable. If you find instead that it merely added to the effect, as opposed to being the cause of the patient's problem, it won't relieve the physician from liability. You can go on to consider damages and you can consider that as a mitigating factor in your deliberation as to the amount that you award. That instruction was based upon this Court's opinion in Santoni v. Schaerf, 48 Md. App. 498 (1981). quoted with approval the following statement: "The rule of contributory negligence requires that the patient's negligence must be concurrent with that of the physician. If it occurs after the physician's negligence and merely adds to the effects, as opposed to being the cause of the patient's problem, it -15In that case, we 295 Md. 442, 463 (1983). Neither argument is

will not relieve the physician from liability; it will merely serve to `mitigate' or lessen the amount of damages awarded to the patient." Santoni, 48 Md. App. at 505 (quoting Holder, Medical Malpractice Law, p. 302 (2nd ed. 1978)). Santoni, as appellee claims, was reversed by the Court of Appeals but not for the reasons appellee implies. In Santoni, the

issue before this Court was whether there was sufficient evidence to support the jury's verdict of contributory negligence. at 505. See id.

Central to that question was the appropriate standard to In Santoni, we applied a

be applied in making that determination.

"more likely than not test" to the evidence, which consisted principally of "a series of inferences." See id. at 509. That In so

approach was rejected by the Court of Appeals in Moodie.

doing, the Court of Appeals held that the "more likely than not" test "[did] not correctly state the Maryland law." See Moodie, 292 Md. at 590. would be "The proper test," the Court held, "is . . . that one entitled to an instruction that he was free of

contributory negligence `if there was no evidence from which a reasonable mind could find or infer that he had directly

contributed to his own injury by behaving as an ordinarily prudent man would not behave, under the circumstance.'" Lindenberg v. Needles, 203 Md. 8, 15 (1953)). Thus, the Court of Appeals' reversal of our decision in Santoni rested solely on the question of the appropriate standard -16See id. (quoting

to be applied to evidence of contributory evidence.

In other

words, this Court's determination in Santoni still stands: if contributory negligence "occurs after the physician's negligence and merely adds to the effects, it will merely serve to `mitigate' or lessen the amount of a damages awarded to the patient" still stands. Consequently, the circuit court's instruction, based on Nor did it amount to a It was

that determination, was not erroneous.

comparative negligence instruction, as appellee contends.

a proper and, we believe, an appropriate recitation of the law concerning contributory negligence that merely aggravates an injury that is complete. To bar recovery, the plaintiff's contributory negligence must have "significantly contributed to the injury." See Smith v.

Pearre, 96 Md. App. 376, 393 (1993)(quoting Chudson, 76 Md. App. at 774). But if, on the other hand, the "injury flowing from the

primary negligence is essentially complete prior . . . to any negligence on the part of" the plaintiff and the plaintiff's negligence "simply enhances the injury," it "may be an entirely correct approach" to reduce the damages to the extent that the plaintiff's negligence "enhances the injury." See Chudson, 76 Md.

App. at 772-73 (relying on 70 C.J.S. Physicians and Surgeons

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